DrChrono Terms and Conditions

Exhibit A

HIPAA BUSINESS ASSOCIATE AGREEMENT

This HIPAA Business Associate Agreement (“BAA”) amends and is made part of that certain Terms and Conditions (“Service Agreement”) by and between Customer (“Entity”) and EverHealth Solutions Inc. doing business as DrChrono. (“Associate”).

Entity and Associate agree that the parties incorporate this BAA into the Service Agreement in order to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and their implementing regulations set forth at 45 C.F.R. Parts 160 and Part 164 (the “HIPAA Rules”). To the extent Associate is acting as a Business Associate of Entity pursuant to the Service Agreement, the provisions of this BAA shall apply, and Associate shall be subject to the penalty provisions of HIPAA as specified in 45 CFR Part 160.

1. Definitions.

Capitalized terms not otherwise defined in this BAA shall have the meaning set forth in the HIPAA Rules. References to “PHI” mean Protected Health Information maintained, created, received or transmitted by Associate from Entity or on Entity’s behalf.

2. Uses or Disclosures.

Associate will neither use nor disclose PHI except as permitted or required by this BAA or as Required By Law. To the extent Associate is to carry out an obligation of Entity under the HIPAA Rules, Associate shall comply with the requirements of the HIPAA Rules that apply to Entity in the performance of such obligation. Associate is permitted to use and disclose PHI:

1. 2.1. to perform any and all obligations of Associate as described in the Service Agreement, provided that such use or disclosure would not violate the HIPAA Rules if done by Entity directly;
2. 2.2. otherwise permitted by law, provided that such use or disclosure would not violate the HIPAA Rules, if done by Entity directly and provided that Entity gives its prior written consent;
3. 2.3. to perform Data Aggregation services relating to the health care operations of Entity;
4. 2.4. to report violations of the law to federal or state authorities consistent with 45 C.F.R. § 164.502(j)(1);
5. 2.5. as necessary for Associate’s proper management and administration and to carry out Associate’s legal responsibilities (collectively “Associate’s Operations”), provided that Associate may only disclose PHI for Associate’s Operations if the disclosure is Required By Law or Associate obtains reasonable assurance, evidenced by a written contract, from the recipient that the recipient will: (1) hold such PHI in confidence and use or further disclose it only for the purpose for which Associate disclosed it to the recipient or as Required By Law; and (2) notify Associate of any instance of which the recipient becomes aware in which the confidentiality of such PHI was breached;
6. 2.6. to de-identify PHI in accordance with 45 C.F.R. § 164.514(b), provided that such de-identified information may be used and disclosed only consistent with applicable law.

In the event Entity notifies Associate of a restriction request that would restrict a use or disclosure otherwise permitted by this BAA, Associate shall comply with the terms of the restriction request.

3. Safeguards.

Associate will use appropriate administrative, technical and physical safeguards to prevent the use or disclosure of PHI other than as permitted by this BAA. Associate will also comply with the provisions of 45 CFR Part 164, Subpart C of the HIPAA Rules with respect to electronic PHI to prevent any use or disclosure of such information other than as provided by this BAA.

4. Subcontractors.

subcontractors that create, receive, maintain or transmit PHI on behalf of Associate agree by written contract to comply with the same restrictions and conditions that apply to Associate with respect to such PHI.

5. Minimum Necessary.

Associate represents that the PHI requested, used or disclosed by Associate shall be the minimum amount necessary to carry out the purposes of the Service Agreement. Associate will limit its uses and disclosures of, and requests for, PHI (i) when practical, to the information making up a Limited Data Set; and (ii) in all other cases subject to the requirements of 45 CFR § 164.502(b), to the minimum amount of PHI necessary to accomplish the intended purpose of the use, disclosure or request.

6. Obligations of Entity.

Entity shall notify Associate of (i) any limitations in its notice of privacy practices, (ii) any changes in, or revocation of, permission by an individual to use or disclose PHI, and (iii) any confidential communication request or restriction on the use or disclosure of PHI that Entity has agreed to or with which Entity is required to comply, to the extent any of the foregoing affect Associate’s use or disclosure of PHI.

7. Access and Amendment.

In accordance with 45 CFR § 164.524, Associate shall permit Entity or, at Entity’s request, an individual (or the individual’s designee) to inspect and obtain copies of any PHI about the individual that is in Associate’s custody or control and that is maintained in a Designated Record Set. If the requested PHI is maintained electronically, Associate must provide a copy of the PHI in the electronic form and format requested by the individual, if it is readily producible, or, if not, in a readable electronic form and format as agreed to by Entity and the individual. Associate will, upon receipt of notice from Entity, promptly amend or permit Entity access to amend PHI so that Entity may meet its amendment obligations under 45 CFR § 164.526.

8. Accounting.

Except for disclosures excluded from the accounting obligation by the HIPAA Rules and regulations issued pursuant to HITECH, Associate will record for each disclosure that Associate makes of PHI the information necessary for Entity to make an accounting of disclosures pursuant to the HIPAA Rules. In the event the U.S. Department of Health and Human Services (“HHS”) finalizes regulations requiring Covered Entities to provide access reports, Associate shall also record such information with respect to electronic PHI held by Associate as would be required under the regulations for Covered Entities beginning on the effective date of such regulations. Associate will make information required to be recorded pursuant to this Section available to Entity promptly upon Entity’s request for the period requested, but for no longer than required by the HIPAA Rules (except Associate need not have any information for disclosures occurring before the effective date of this BAA).

9. Inspection of Books and Records.

Associate will make its internal practices, books, and records, relating to its use and disclosure of PHI, available upon request HHS to determine compliance with the HIPAA Rules.

10. Reporting.

To the extent Associate becomes aware or discovers any use or disclosure of PHI not permitted by this BAA, any Security Incident involving electronic PHI or any Breach of Unsecured Protected Health Information involving PHI, Associate shall promptly report such use, disclosure, Security Incident or Breach to Entity. Associate shall mitigate, to the extent practicable, any harmful effect known to it of a Security Incident, Breach or use or disclosure of PHI by Associate not permitted by this BAA. Notwithstanding the foregoing, the parties acknowledge and agree that this section constitutes notice by Associate to Entity of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined below) for which no additional notice to Entity shall be required. “Unsuccessful Security Incidents” shall include, but not be limited to, pings and other broadcast attacks on Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of electronic PHI. All reports of Breaches shall be made in compliance with 45 CFR § 164.410.

11. Term and Termination.

This BAA shall be effective as of the effective date of the Service Agreement and shall remain in effect until termination of the Service Agreement. Either party may terminate this BAA and the Service Agreement effective immediately if it determines that the other party has breached a material provision of this BAA and failed to cure such breach within thirty (30) days of being notified by the other party of the breach. If the non-breaching party determines that cure is not possible, such party may terminate this BAA and the Service Agreement effective immediately upon written notice to other party.

Upon termination of this BAA for any reason, Associate will, if feasible, return to Entity or destroy all PHI maintained by Associate in any form or medium, including all copies of such PHI. Further, Associate shall recover any PHI in the possession of its agents and subcontractors and return to Entity or securely destroy all such PHI. In the event that Associate determines that returning or destroying any PHI is infeasible, Associate may maintain such PHI but shall continue to abide by the terms and conditions of this BAA with respect to such PHI and shall limit its further use or disclosure of such PHI to those purposes that make return or destruction of the PHI infeasible. Upon termination of this BAA for any reason, all of Associate’s obligations under this BAA shall survive termination and remain in effect (a) until Associate has completed the return or destruction of PHI as required by this Section and (b) to the extent Associate retains any PHI pursuant to this Section.

12. General Provisions.

In the event that any final regulation or amendment to final regulations is promulgated by HHS or other government regulatory authority with respect to PHI, the parties shall negotiate in good faith to amend this BAA to remain in compliance with such regulations. Any ambiguity in this BAA shall be resolved to permit Entity and Associate to comply with the HIPAA Rules. Nothing in this BAA shall be construed to create any rights or remedies in any third parties or any agency relationship between the parties. A reference in this BAA to a section in the HIPAA Rules means the section as in effect or as amended. The terms and conditions of this BAA override and control any conflicting term or condition of the Service Agreement and replace and supersede any prior business associate agreements in place between the parties. All non-conflicting terms and conditions of the Service Agreement remain in full force and effect.

Exhibit B

AMA END USER AGREEMENT

This American Medical Association End User Agreement is made a part of the Terms and Conditions (“Agreement”) by and between EverHealth Solutions Inc. doing business as DrChrono. (“Company”) and the Customer. Capitalized terms not otherwise defined in this Addendum shall have the meaning set forth in the Agreement.

1. Licensed Content is copyrighted by the AMA and CPT is a registered trademark of the AMA.
2. Company, as a party to a license agreement with the AMA, is authorized to grant Customer a limited, non-exclusive, non-transferable, non-sublicensable license for Customer to use Licensed Content in the Services, for the sole purpose of internal use by Customer within the United States. The sublicense granted will automatically terminate upon termination of the agreement between Company and the AMA, unless prior written consent of AMA is obtained by Company or a direct license between Customer and AMA is entered.
3. The provision of updated Licensed Content in the Services is dependent on a continuing contractual relationship between end user and the AMA.
4. Customer is prohibited from making Licensed Content publicly available creating derivative works (including translating), transferring, selling, leasing, licensing, or otherwise making available to any unauthorized party, the Services, or a copy or portion of the Licensed Content.
5. Customer expressly acknowledges and agrees to the extent permitted by applicable law, use of the Licensed Content is at Customer’s sole risk and the Licensed Content is provided “as is” without warranty of any kind. The AMA does not directly or indirectly practice medicine or dispense medical services. Fee schedules, relative value units, conversion factors and/or related components are not assigned by the AMA, are not part of CPT, and the AMA is not recommending their use. The Licensed Content does not replace the AMA’s Current Procedural Terminology book or other appropriate coding authority. The coding information contained in the Licensed Content should be used only as a guide.
6. Customer is required to keep records and submit reports including information necessary for the calculation of royalties payable to the AMA by Company, of the same type as required of Company. All records and reports required under this Section shall be subject to audit by the AMA.
7. U.S. Government End Users. CPT is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. This agreement does not grant the Federal Government a direct license to use CPT based on FAR 52.227-17 (Data Rights – General) and DFARS 252.227-7015 (Technical Data – Commercial Items).
8. Customer must ensure that anyone with authorized access to the Services will comply with the provisions of this Agreement.
9. Customer acknowledges that the AMA is a third-party beneficiary to the Agreement.
10. Customer expressly consents to the release of its name to the AMA.

EXHIBIT C

REVENUE CYCLE MANAGEMENT SERVICES ADDENDUM

If Customer orders RCM Services pursuant to any Order Form, the terms of this Revenue Cycle Management Services Addendum (“Addendum”) will apply and is made a part of the Terms and Conditions (“Agreement”) by and between EverHealth Solutions Inc. doing business as DrChrono. (“Company”) and the Customer. Capitalized terms not otherwise defined in this Addendum shall have the meaning set forth in the Agreement.

1. Revenue Cycle Management Services.

RCM Services may be purchased pursuant to an applicable Order Form between Company and Customer. All costs in providing source data to Company for the RCM Services shall be borne by Customer and Company shall be responsible for all costs of providing the RCM Services, provided, however, any costs for attorneys or collection agencies incurred with respect to collection of delinquent accounts shall be borne by Customer, and Company shall not incur such costs on behalf of Customer without the prior written consent of Customer. Customer’s approval will be obtained prior to selection of a collection agent, the turning over of accounts for collection and the taking of legal action against such accounts. Any consent or approval by Customer contemplated hereby will not be unreasonably withheld, conditioned, or delayed. Starting on the Claims Live Date as specified in an applicable Order Form, Customer authorizes Company to perform the RCM Services contemplated in the Agreement in addition to all Company Services delineated in the RCM Scope of Services Grid. By providing Company with credentials to a Customer’s payment processing system, Customer authorizes Company to enter Customer patient payments in that system on its behalf.

2. Billing Policies.

All TPPs and patients shall be instructed to make payments payable to Customer and said checks, and/or insurance monies, will be mailed directly to a post office box, lock box, or other address as designated by Customer. Customer is responsible for ensuring security at the location Customer designates to receive payments and to post payments directly into their bank account. Customer is also responsible to scan or mail copies of all checks and paper Explanations of Benefits (EOBs) to Company. At no time, or under any circumstances, shall Company have access to the funds received by Customer as a result of medical services provided. Company will not, under any circumstances cancel existing charge balances of any patient without written instruction from Customer. Exceptions to this policy include contractual managed care write-offs, pre-defined small balance write-offs, bankruptcies and other appropriate, non-collectable payer adjustments. Customer shall not discharge any patient balance prior to the standard billing cycle, with the exception of financial hardship cases which are approved in writing by Customer. In the event Company provides Credentialing Services to Customer, if there is a denial due to the sole fault of Company in submitting the Customer application, and not due to malpractice or any other cause resulting from Customer, Company will resubmit the Customer application. No refunds of any Fees will be issued to Customer due to denial for any reason of Customer applications submitted by Company for Credentialing Services.

3. Responsibilities of Customer.

Except for in the event that Company is providing to the Customer RCM Services with a Claims Live Date that occurs before the Effective Date of the relevant Order Form, Customer shall submit all source data to Company in a timely manner but not later than thirty (30) days of rendering its professional services eligible for reimbursement. Customer shall also provide Company with demographic information and clinical notes on each patient satisfactory to Company in order for Company to properly prepare billings on each patient account, and Customer will be solely responsible for the accuracy and completeness of such information provided to Company. Customer shall also provide appropriate banking arrangements for receipt of payments under such method as acceptable to Company for the proper accounting for receipt of payments by patients and TPPs of Customer. Customer shall also timely notify Company in writing of any claimed error which resulted from the RCM Services provided by Company and shall furnish Company with reasonable supporting documentation for such claim. Customer shall also be responsible for providing Company with updated information necessary for Company to properly bill Customer’s patients and such other information which Company may reasonably require from time to time to perform all RCM Services. Customer shall notify Company promptly when new medical providers join Customer. Customer shall also promptly provide Company with copies of all contracting and credentialing information and forms it receives from managed care plans and TPPs in order for Company to update its information with respect to such managed care plans and TPPs. Customer shall be responsible for providing Company with a current list of facilities where Customer provides medical services. Customer shall also be responsible for properly identifying the description of the facility in order for Company to properly bill for medical services provided at each facility. Further, Customer shall timely notify Company of any changes to the list of facilities from time to time as required. Customer shall provide Company with a list of managed care plans in which Customer participates. Customer will assist Company as necessary or reasonably requested by Company in obtaining negotiated reimbursement schedules from any managed care plan in which Customer participates. Company shall not be responsible for incorrect action taken on payments due to Customer’s failure to identify specific managed care plans, to obtain a full reimbursement schedule or to otherwise fail to provide the information or notices contemplated herein. Customer is solely responsible for procuring and maintaining necessary provider numbers and licenses to allow Company to provide the RCM Services herein. Customer will be responsible for performing all Customer Responsibilities delineated in the RCM Scope of Services Grid in a timely manner.

4. Fees and Payments.

As specified in an applicable RCM Services Order Form Customer shall pay to Company Fees for the RCM Services equaling the Monthly Additional Feature Fee plus the greater of: (1) the Monthly Collections Rate which calculates Fees as a percentage of total monthly collections and is based on the actual Net Collections per month (as defined below) collected by the Customer for medical services provided by the Customer’s medical providers, whether or not such medical services were billed to patients by Company; or (2) the Monthly Minimum Subscription Fee. For purposes of this Addendum, “Net Collections” shall mean gross collections collected less refunds. All Fees under this Addendum shall be paid per the terms of the Agreement. Company, upon notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees for RCM Services effective any time, which right will include without limitation the right to charge a Fee for new features or functions of the RCM Services or for features or functions that have previously been offered at no charge.

5. Third Parties.

The RCM Services may be provided in conjunction with one or more third-party partners, and Customer hereby waives any and all liability and claims which Customer may have against Company or the partner in connection with the provision of RCM Services.

6. Exclusivity.

During the Term, Customer agrees to exclusively use Company for services related to billing patients and TPPs for medical services generated by Customer.

7. Limitations on Liability.

Customer shall notify Company or any inaccurate claims listed in a report within 10 days of delivery of such report. Once Customer provides such notice, Company will re-process any inaccurate claims, at Company’s expense. Notwithstanding any provision of the Agreement, Company shall have no liability for billing errors or other claim inaccuracies except for its obligation to re-submit any corrected claims pursuant to this paragraph.

8. Termination and Effect.

Either party may terminate the applicable RCM Services Order Form by providing 90 days’ written notice prior to the end of the then current term. Customer agrees that upon its termination for any reason other than a breach of the material terms of the Agreement, Company may at its election continue providing RCM Services to Customer on all accounts receivable as of the date of termination and for a period not less than 6 months thereafter, and Customer will pay Fees to Company for RCM Services rendered pursuant to the applicable Order Form during such time.

9. Miscellaneous.

Except as expressly provided in this Addendum, the terms of the Agreement are unchanged and shall remain in full force and effect. In the event of an inconsistency between this Addendum and the Agreement, the terms and conditions of this Addendum shall control as to RCM Services as provided pursuant to the Agreement.

EXHIBIT D

FAX SERVICES ADDENDUM

If Customer orders Fax Services pursuant to any Order Form, the terms of this Fax Services Addendum will apply and is made a part of the Terms and Conditions (“Agreement”) by and between iSalus, LLC (“Company”), provider of faxing service (“Service Provider”) and the Customer. Capitalized terms not otherwise defined in this Fax Services Addendum shall have the meaning set forth in the Agreement.

1. The Fax Service.

The fax service provides Customer with the capability to send and receive fax documents using electronic mail (“email”) pursuant to the terms set forth herein (the “Fax Service”). As part of the registration process, Customer shall be required to provide an email address. Customer is responsible for (1) maintaining the confidentiality of its password, fax service number and account information, (2) for all individual end users who access and/or use the Fax Service through Customer’s account, and (3) any activities that occur through Customer’s account. Customer’s right to use the Fax Service is personal to it and Customer agrees not to resell the use of the Fax Service.

2. Customer’s Conduct.

EXHIBIT E

NABLA END USER LICENSE AGREEMENT END USER LICENSE AGREEMENT

IMPORTANT NOTICE: This End User License Agreement (“EULA”) is a binding legal contract between you (either an individual or a legal entity) (“you”) and Nabla Technologies, Inc. (“Licensor”). By accessing or using the accompanying software application designed to work with the internet browser installed on your computer or your mobile phone (the “Software”) you will be bound by the terms of this EULA. If you do not agree to the terms of this EULA, Licensor is not willing to grant you any right to use or access the Software. In such an event, you may not access, use or copy the Software. This EULA shall apply only to the Software made available to you or your company. You represent that you are lawfully able to enter into contracts and are of the legal age of majority in the jurisdiction in which you reside (at least eighteen years of age in many countries). In addition, if this agreement is being agreed to by a company or other legal entity, then the person agreeing to this agreement on behalf of that company or entity represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this agreement. You should save a copy of this agreement for your records.

1. Grant of License.

During the term of this EULA, Licensor and its licensors grant you a revocable, perpetual, nontransferable, non-sublicensable, personal, nonexclusive license to use the object code version of the Software for your internal use only solely in connection with your associated hardware. The term “Software” will include any updates, bug fixes, and versions (collectively, “Enhancements”) that Licensor may, in its discretion, make available. The Software is licensed, not sold. Except for the limited license granted above, Licensor and its licensors retain all right, title and interest in the Software, all copies thereof, and all proprietary rights in the Software, including copyrights, patents, trademarks and trade secret rights.

2. Restrictions.

The license granted to you in this EULA is restricted as follows:

2.1. Limitations on Copying and Distribution. You may not copy or distribute the Software except to the extent that copying is necessary to use the Software for purposes set forth herein. You may make a single copy of the Software for backup and archival purposes.

2.2. Limitations on Reverse Engineering and Modification. Except to the extent expressly permitted by applicable law and only after consultation with Licensor, you may not reverse engineer, decompile, disassemble, modify or create works derivative of the Software.

2.3. Sublicense, Rental and Third Party Use. You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Software, or directly or indirectly permit any third party to use or copy the Software.

2.4. Proprietary Notices. You may not remove any proprietary notices (e.g., copyright and trademark notices) from the Software or any accompanying documentation. You must reproduce the copyright and all other proprietary notices displayed on the Software and documentation on each permitted back-up or archival copy.

2.5. Use in Accordance with Documentation. All use of the Software shall be in accordance with its then current documentation.

2.6. Compliance with Applicable Law. You will be solely responsible for ensuring your use of the Software is in compliance with all applicable foreign, federal, state and local laws, rules and regulations.

3. Third Party Software.

To the extent any software licensed from third parties, including open source software, (collectively, “Third Party Software”) is provided with or incorporated into the Software, you will comply with the terms and conditions of the applicable third party licenses associated with the Third Party Software, in addition to the terms and restrictions contained in this EULA. LICENSOR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE. ALL THIRD PARTY SOFTWARE IS PROVIDED “AS-IS,” WITHOUT WARRANTIES OF ANY KIND. IN NO EVENT WILL LICENSOR BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE THIRD PARTY SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

4. Term and Termination.

Unless provided otherwise in an accompanying order document, this EULA will commence on the earlier of the date you first access or use the Software (the “Effective Date”) and continue in effect until it is terminated (the “Term”) as provided in this Section. To the extent that your access to the Software is through your relationship with an organization that has purchased access to the Software, and such agreement terminates, this EULA will continue for the earlier of six (6) months or until the next renewal date of the agreement you signed with your organization (the “Transition Period”); provided that Licensor continues to receive timely payment for applicable fees from your organization. After the Transition Period, Licensor reserves the right to terminate your access without cause by providing thirty (30) days prior notice in accordance with this Section and/or directly offer you access to the Software at Licensor’s then current pricing through an agreement with you and the Licensor. Upon any termination or expiration of this EULA, the license granted in Section 1 will automatically terminate and you will have no further right to possess or use the Software. On Licensor’s request, you will provide Licensor with a signed written statement confirming that the Software has been permanently removed from your systems.

5. No Medical Advice.

The content of the Software, including without limitation, text, copy, audio, video, photographs, illustrations, graphics, and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind. You should always seek the advice of a health care professional with any questions or concerns you may have regarding any patient needs and medical conditions. Licensor does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be included in or offered with the Software. Reliance on any information appearing on the Software, whether provided by Licensor or others, is solely at your own risk.

6. Limited Warranty; Disclaimer.

Licensor warrants that for a period of thirty (30) days from delivery initial delivery to you, the Software will operate in substantial conformity with its then current generally available documentation. Licensor shall not be liable for failures caused by third party hardware and software (including your own systems), misuse of the Software, or your negligence or willful misconduct. EXCEPT AS PROVIDED IN THIS SECTION, THE SOFTWARE IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR AND ITS SUPPLIERS AND VENDORS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUITE ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ANY OF ITS PERSONNEL OR AGENTS SHALL CREATE ANY ADDITIONAL LICENSOR WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF LICENSOR’S OBLIGATIONS HEREUNDER.

7. Indemnities.

Licensor will indemnify, defend, and hold you harmless from any claim, demand, action, proceeding, judgment, or liability arising out of a claim by a third-party that your use of the Software in conformance with the terms of this EULA infringes a United States patent, copyright, or trade secret of that third party. The foregoing indemnification obligation of Licensor is contingent upon you promptly notifying Licensor in writing of such claim, permitting Licensor sole authority to control the defense or settlement of such claim, and providing Licensor reasonable assistance in connection therewith. If a claim of infringement under this Section occurs, or if Licensor determines a claim is likely to occur, Licensor will have the right, in its sole discretion, to either: (i) procure for you the right or license to continue to use the Software free of the infringement claim; or (ii) modify the Software to make it non-infringing, without loss of material functionality. If either of these remedies is not reasonably available to Licensor, Licensor may, in its sole discretion, immediately terminate this EULA and return the license fees paid by you for the Software, prorated over three years from the date of initial delivery. Notwithstanding the foregoing, Licensor shall have no obligation with respect to any claim of infringement to the extent that it is based upon or arises out of any software not provided by Licensor, including any Third Party Software. The provisions of this Section state the sole and exclusive obligations and liability of Licensor and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Software and/or this EULA and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed. You will indemnify, defend, and hold Licensor harmless from any claim, demand, action, proceeding, judgment, or liability from a third-party claim arising out of an Excluded Claim. Licensor must promptly notify you in writing of any such claim, permit you sole authority to control the defense or settlement of the claim, and provide you reasonable assistance in connection therewith.

8. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR OR ITS LICENSORS, SUPPLIERS, AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY SUPPORT SERVICES OR OTHER SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE AGGREGATE LIABILITY OF LICENSOR AND ITS LICENSORS, SUPPLIERS, AND VENDORS UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO FEES PAID BY YOU, IF ANY, DURING THE THREE (3) MONTHS IMMEDIATELY PRECEEDING THE FIRST EVENT GIVING RISE TO LIABILITY.

9. Confidentiality.

The parties agree to hold each other’s Confidential Information in strict confidence and not to make each other’s Confidential Information available in any form to any third party (other than their authorized agents) or to use each other’s Confidential Information for any purpose other than as specified in this EULA. Each party agrees to take all reasonable steps to ensure that Confidential Information of the other party is not disclosed or distributed by its employees, agents, or consultants in violation of the provisions of this EULA. “Confidential Information” shall mean, with respect to a party hereto, all information or material which (i) gives that party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of that party; or (ii) from all the relevant circumstances should reasonably be assumed to be confidential. Licensor’s Confidential Information includes, but is not limited to, the Software and all related documentation. Each party’s Confidential Information shall remain the sole and exclusive property of that party. Neither party shall have any obligation with respect to confidential information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; or (iii) is independently developed by the receiving party. You may not use any Confidential Information or data disclosed by Licensor in connection with this EULA to contest the validity of any Licensor intellectual property, including the Software. Any such use of Licensor’s Confidential Information and data shall constitute a material, non-curable breach of this EULA.

10. Feedback.

You may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Licensor with respect to its products and services, including the Software. Feedback is voluntary and Licensor is not required to hold it in confidence. Licensor may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant Licensor an irrevocable, non-exclusive, perpetual, world-wide, royalty-free license to use the Feedback in connection with Licensor’s business, including enhancement of the Software, and the provision of products and services to Licensor’s customers.

11. Governing Law.

This EULA is governed by and construed in accordance with the laws of the State of Delaware. Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in Dover, Delaware and the parties submit to the in personam jurisdiction of such courts for purposes of any action or proceeding.

12. General.

Solely as it relates to the Software, this EULA constitutes the entire understanding and agreement between the parties with respect to the transactions contemplated in this EULA and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this EULA, all of which are merged in this EULA. Licensor reserves the right to amend or revise this EULA from time to time, in Licensor’s sole discretion. In the event that any provision of this EULA is found invalid or unenforceable pursuant to judicial decree, the remainder of this EULA shall remain valid and enforceable according to its terms. Any failure by Licensor to strictly enforce any provision of this EULA will not operate as a waiver of that provision or any subsequent breach of that provision. The following provisions shall survive any termination or expiration of this EULA: Sections 2 (Restrictions), 4 (Term and Termination), 8 (Limitation of Liability), 9 (Confidentiality), 10 (Feedback), 11 (Governing Law), 12 (General), and 14 (U.S. Government Rights). Licensor may assign any of its rights or obligations hereunder as it deems appropriate. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.

13. Export.

You may not export, directly or indirectly, the Software to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. It shall be your responsibility to comply with such export laws, rules and regulations. You will defend, indemnify, and hold harmless Licensor from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any claim the Software was exported or otherwise shipped or transported in violation of applicable laws, rules and regulations.

14. U.S. Government Rights.

The Software is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA as specified in FAR 12.212, Computer Software.

15. Electronic Acceptance.

This EULA may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent, including through your continued use of the Software) and your acceptance will be deemed binding between the parties. Neither party may contest the validity or enforceability of this EULA, including under any applicable statute of frauds, because it was accepted or signed in electronic form. Electronically maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.